Rahimi v. Zydus International Private Ltd et al
Filing
197
OPINION filed. Signed by Judge Brian R. Martinotti on 1/23/2018. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
AZAM RAHIMI and RADIF RASHID,
:
:
Plaintiffs,
:
:
:
Civil Action No. 15-6536-BRM-DEA
v.
:
:
ZYDUS PHARMACEUTICALS (USA)
:
OPINION
INC., et al.,
:
:
Defendants.
:
____________________________________:
MARTINOTTI, DISTRICT JUDGE
Before this Court is a Motion for Reconsideration filed by Defendant Zydus
Pharmaceuticals (USA) Inc. (“Zydus”) (ECF No. 156), seeking reconsideration of the Court’s
April 26, 2017 Opinion and Order (ECF Nos. 153 and 154), which granted in part and denied in
part a motion to dismiss Plaintiffs Azam Rahimi (“Rahimi”) and Radif Rashid’s (“Rashid,”
collectively “Relators”) First Amended Complaint (First Am. Compl. (ECF No. 9)). Relators
oppose the Motion. (ECF No. 180.) Pursuant to Federal Rule of Civil Procedure 78(b), no oral
argument was heard. For the reasons set forth herein, Zydus’s Motion is GRANTED in part and
DENIED in part.
I.
BACKGROUND
The underlying facts are set forth at length in the Court’s April 25, 2017 Opinion (ECF No.
153), from which Zydus seeks reconsideration. In the interest of judicial economy, the Court refers
the parties to that Opinion for a full recitation of the factual and procedural background of this
dispute.
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II.
LEGAL STANDARD
While not expressly authorized by the Federal Rules of Civil Procedure, motions for
reconsideration are proper pursuant to this District’s Local Civil Rule 7.1(i). See Dunn v. Reed
Group, Inc., Civ. No. 08–1632, 2010 WL 174861, at *1 (D.N.J. Jan 13, 2010). The comments to
that Rule make clear, however, that “reconsideration is an extraordinary remedy that is granted
‘very sparingly.’” L.Civ.R. 7.1(i) cmt. 6(d) (quoting Brackett v. Ashcroft, Civ. No. 03-3988, 2003
WL 22303078, *2 (D.N.J. Oct. 7, 2003)); see also Langan Eng’g & Envtl. Servs., Inc. v. Greenwich
Ins. Co., Civ. No. 07–2983, 2008 WL 4330048, at *1 (D.N.J. Sept. 17, 2008) (explaining that a
motion for reconsideration under Rule 7.1(i) is “‘an extremely limited procedural vehicle,’ and
requests pursuant to th[is] rule[] are to be granted ‘sparingly’”) (citation omitted); Fellenz v.
Lombard Investment Corp., 400 F. Supp. 2d 681, 683 (D.N.J. 2005).
A motion for reconsideration “may not be used to re-litigate old matters, nor to raise
arguments or present evidence that could have been raised prior to the entry of judgment.” P.
Schoenfeld Asset Mgmt., LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001). Instead,
Local Civil Rule 7.1(i) directs a party seeking reconsideration to file a brief “setting forth concisely
the matter or controlling decisions which the party believes the Judge or Magistrate Judge has
overlooked.” L. Civ. R. 7.1(i) 1; see also Bowers v. Nat’l Collegiate Athletic Ass’n, 130 F. Supp.
2d 610, 612 (D.N.J. 2001) (“The word ‘overlooked’ is the operative term in the Rule.”).
To prevail on a motion for reconsideration, the moving party must show at least one of the
following grounds: “(1) an intervening change in the controlling law; (2) the availability of new
1
Local Civil Rule 7.1(d) further provides that “[n]o reply papers shall be filed, unless permitted
by the Court, relating to . . . [Motions for] Reconsideration under L. Civ. R. 7.1(i).” Despite this
clear mandate, Zydus filed a Reply to Relators’ Opposition to Zydus’s Motion for Reconsideration
(ECF No. 182) without first seeking or obtaining the Court’s permission. Therefore, the Court will
not consider the arguments raised in Zydus’s reply papers.
2
evidence that was not available when the court [made its initial decision]; or (3) the need to correct
a clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café v. Quinteros, 176
F. 3d 669, 677 (3d Cir. 1999); see also N. River Ins. Co. v. CIGNA Reinsurance, Co., 52 F. 3d
1194, 1218 (3d Cir. 1995) (internal quotations omitted). A court commits clear error of law “only
if the record cannot support the findings that led to the ruling.” ABS Brokerage Servs. v. Penson
Fin. Servs., Inc., No. 09–4590, 2010 WL 3257992, at *6 (D.N.J. Aug. 16, 2010) (citing United
States v. Grape, 549 F. 3d 591, 603–04 (3d Cir. 2008) “Thus, a party must . . . demonstrate that
(1) the holdings on which it bases its request were without support in the record, or (2) would result
in ‘manifest injustice’ if not addressed.” Id. Moreover, when the assertion is that the Court
overlooked something, the Court must have overlooked some dispositive factual or legal matter
that was presented to it. See L.Civ.R. 7.1(i).
In short, “[m]ere ‘disagreement with the Court’s decision’ does not suffice.” ABS
Brokerage Servs., 2010 WL 3257992, at *6. (quoting P. Schoenfeld, 161 F. Supp. 2d at 353); see
also United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999) (“Mere
disagreement with a court’s decision normally should be raised through the appellate process and
is inappropriate on a motion for [reconsideration].”); Florham Park Chevron, Inc. v. Chevron
U.S.A., Inc., 680 F. Supp. 159, 163 (D.N.J. 1988); Schiano v. MBNA Corp., Civ. No. 05–1771,
2006 WL 3831225, at *2 (D.N.J. Dec. 28, 2006) (“Mere disagreement with the Court will not
suffice to show that the Court overlooked relevant facts or controlling law, . . . and should be dealt
with through the normal appellate process. . . .”) (citations omitted).
III.
DECISION
In their Motion for Reconsideration, Zydus asks the Court to reconsider its decision
partially denying its motion to dismiss. Specifically, Zydus argues: (1) Relators have not complied
3
with Rule 9(b); (2) Relators’ claims are time barred; and (3) Relators lack standing to proceed with
their State False Claim Act (“FCA”) claims. (ECF No. 156-1 at 20.) The Court will address
Zydus’s challenges in turn.
In its prior Opinion, the Court denied Zydus’s motion to dismiss each of Relators’ federal
and State FCA claims for failing to allege presentment. (ECF No. 152 at 20-24.) Counts I-III of
the First Amended Complaint assert causes of action under 31 U.S.C. § 3729(a), alleging Zydus:
(1) knowingly caused a false or fraudulent claim to be presented to the government for payment
or approval, in violation of 31 U.S.C. §§ 3729(a)(1) and (a)(1)(A); (2) knowingly made or used or
caused false records or statements, and omitted material facts, to get such false or fraudulent claims
paid by the government, or that were material to false or fraudulent claims presented to the
government, in violation of 31 U.S.C. §§ 3729(a) and (a)(1)(B); and (3) conspired with its retail
pharmacy customers by offering these customers significantly lower prices for the Generic Drugs
as an inducement, while Zydus reported false and fraudulent prices to the Publishers knowing
Medicaid relied on such prices to establish reimbursement rates, in violation of the AKS. (See ECF
No. 9.) By agreeing to the financial incentive of this price spread scheme, Relators allege Zydus
and its retail pharmacy customers caused the submission of false or fraudulent claims to Medicaid,
in violation of 31 U.S.C. §§ 3729(a)(3) and (a)(1)(C). (Id.) In addition to their federal FCA claims,
Relators also bring causes of action under the false claims acts of 28 States and the District of
Columbia. 2 (Id. at 47-126.)
2
Relators’ claims on behalf of the City of Chicago were previously dismissed. After Zydus’s
motion to dismiss was fully briefed, Relators filed a Motion to Dismiss Count XXXIII, asserted
on behalf of the City of Chicago. (ECF No. 116.) Because “the City ha[d] no objection to the
dismissal, with prejudice, of Count XXXIII of Relators’ First Amended Complaint, and to the
dismissal, without prejudice, of the City as a party in the suit” (ECF No. 141), and no other
opposition was filed, the Court granted Relators’ motion on January 23, 2017. (ECF No. 152.)
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Relying, in part, on Exhibits 3 through 12 to the First Amended Complaint, the Court
concluded:
Exhibits 3 through 12 to the [First Amended Complaint], which are
claims submitted by Rashid to New York Medicaid, all clearly show
the reported AWP. (See, e.g., ECF No. 9 at Ex. 3 (listing Blue
Book’s published AWP next to “BBAWP,” or “Blue Book Average
Wholesale Price”.)[)] Thus, the claims and invoices attached to the
[First Amended Complaint] provide a reliable indicia that false
claims were presented to Medicaid.
(ECF No. 153 at 23 (emphasis added).) Zydus urges the Court to reconsider its position on the
grounds that “the Court appears to have misconstrued the exhibits.” (ECF No. 156-1 at 6.)
Specifically, Zydus argues:
The Court’s conclusion appears to be premised on the fact that the
“claims . . . all clearly show the reported AWP.” But this is not
correct. As is set out in Zydus’s motion to dismiss reply brief,
Exhibits 3 through 12 each includes two (or more) separate
documents: (i) an electronic claim form presented by Relator Rashid
to New York Medicaid and (ii) an invoice received by Relator
Rashid from his wholesaler. While the wholesaler invoices include
a figure designated as “BBAWP,” the claims Relator Rashid
presented to New York Medicaid do not include the AWP.
(Id. at 6-7.) However, Zydus ignores both the legal standard governing motions for reconsideration
and the basis of the Court’s prior ruling. For example, Zydus does not suggest there has been any
intervening change in the controlling law or that there is any new, previously unavailable evidence.
Instead, Zydus reargues Relators had not alleged facts demonstrating that false claims were
actually submitted to the government because none of the claims attached to Relators’ First
Amended Complaint includes or references an AWP. (Compare ECF No. 101-1 at 25 with ECF
No. 156-1 at 6-7.) This argument is not proper on a motion for reconsideration. See L.Civ.R. 7.1(i).
To the extent Zydus argues the Court may have overlooked specific allegations in the First
5
Amended Complaint that would result in dismissal of Relators’ claims and that reconsideration is
necessary to prevent “manifest injustice,” the Court also addresses that argument.
The term “overlooked” in Rule 7.1(i) “has been consistently interpreted as referring only
to facts and legal arguments that might have reasonably resulted in a different conclusion had they
been considered.” Summerfield v. Equifax, 264 F.R.D. 133, 145 (D.N.J. 2009); see also Schiano,
2016 WL 5340508, at *1 (“[W]hen the assertion is that the Court overlooked something, the Court
must have overlooked some dispositive factual or legal matter that was presented to it.”) (citing
L.Civ.R. 7.1(i)). Here, the Court did not overlook Exhibits 3 through 12 because those Exhibits
were attached to the First Amended Complaint and Zydus argued the same argument in its motion
to dismiss. Hackensack Riverkeeper, Inc. v. Delaware Ostego Corp., 2007 WL 1749963, at *2
(D.N.J. June 15, 2007) (denying motion for reconsideration, noting “the Court [did not] overlook
Plaintiffs’ claims . . . and the relevant allegations in their Amended Complaint” because “those
claims were presented in the Amended Complaint and argued in Plaintiffs’ opposition to
Defendants’ motion to dismiss”). Indeed, the Court specifically referenced the Exhibits in its prior
Opinion. (ECF No. 153 at 23.)
Even if the Court had overlooked the fact that the claims do not reference the AWP (which
it did not), it would not have resulted in a different conclusion because the Court’s holding was
based on Relators’ “claims and invoices attached to the [First Amended Complaint],” not just the
claims presented by Rashid. (Id. (emphasis added).) Further, relators need not “identify a specific
claim for payment at the pleading stage of the case to state a claim for relief.” Foglia v. Renal
Ventures Mgmt., LLC, 754 F.3d 153, 156 (3d Cir. 2014). It is “sufficient for a plaintiff to allege
particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong
inference that claims were actually submitted.” Id. at 156, 157 (citations omitted). As the Court
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found in its prior Opinion, “the claims and invoices attached to the FAC provide a reliable indicia
that false claims were presented, and Relators provide[] more than sufficient details of the alleged
scheme to put Zydus on notice of their claims.” (ECF No. 153 at 24 (emphasis added).)
Accordingly, Zydus’s Motion for Reconsideration as to Relator’s presentment argument is
DENIED.
Next, Zydus contends certain of Relators’ State FCA claims are “time-limited” because
they accrued before the effective date of the relevant State’s qui tam statutes. (ECF No. 156-1 at
7-10.) Specifically, it requests reconsideration of the Court’s prior Opinion as it relates to the FCA
statutes of Connecticut, Georgia, Indiana, Minnesota, New Jersey, Oklahoma, and Rhode Island.
(Id. at 8.) Zydus argues “[e]ach of these States applies a presumption that a statute operates
prospectively only unless the legislature directs otherwise, and there is no statutory language or
legislative history indicating that these State FCAs apply retroactively.” (Id.) Zydus goes on to
illustrate and explain how the States’ FCAs statutes should apply prospectively through case law,
indicating there is a general presumption that legislation is intended to operate prospectively in
those States. (See id. at 8-10.) Relators argue Zydus “advances no new authority or evidence
indicating that manifest injustice would result from retroactive application of the state qui tam
statutes at issue.” (ECF No. 180 at 3.) They further argue “Zydus also does not cite any new
authority regarding legislative intent as to the state qui tam statues at issue. Zydus is simply asking
this Court to rethink what it has already thought through, which is improper in a motion for
reconsideration.” (Id. at 4 (citations omitted).) However, they do not refute the case law provided
by Zydus. (Id. at 3-4.)
The Court is persuaded its prior decision to deny dismissal as to Connecticut, Georgia,
Indiana, Minnesota, New Jersey, Oklahoma, and Rhode Island FCA claims prior to their effective
7
date was based upon a legal error. Therefore, the Court corrects the legal error to prevent manifest
injustice. Max’s Seafood Café, 176 F. 3d at 677.
The United States Supreme Court, in Bradley v. Sch. Bd. of City of Richmond, 416 U.S.
696, 711 (1974), “anchor[ed] its holding . . . on the principle that a court is to apply the law in
effect at the time it renders its decision, unless doing so would result in manifest injustice or there
is statutory direction or legislative history to the contrary.” The Court rejected “the contention that
a change in the law is to given effect in a pending case only where that is the clear and stated
intention of the legislature.” Id. at 715. The Court also declined to hold that “courts must always .
. . apply new laws to pending cases in the absence of clear legislative direction to the contrary,”
but noted that since the legislative history of the statute in question could be supportive of either
position (applying the new law or the old), “it would seem to provide at least implicit support for
the application of the statute to pending cases.” Id. at 716.
In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court clarified under
what circumstances a new statute that does not explicitly state whether it applies to pending cases
should be applied retroactively. The Court noted it “did not intend to displace the traditional
presumption against applying statutes affecting substantive rights, liabilities, or duties to conduct
arising before their enactment” with the Bradley decision. Id. at 278. It commented that, even
though the language in Bradley “suggests a categorical presumption in favor of application of all
new rules of law,” it was making clear “that Bradley did not alter the well-settled presumption
against application of the class of new statutes that would have genuinely ‘retroactive’ effect.” Id.
at 277. Thus, the Landgraf Court enunciated the following standard:
[W]hen a case implicates a federal statute enacted after the events
in a suit, the court’s first task is to determine whether Congress has
expressly prescribed the statute’s proper reach. If Congress has done
so, of course, there is no need to resort to judicial default rules.
8
When, however, the statute contains no such express command, the
court must determine whether the new statute would have
retroactive effect, i.e., whether it would impair rights a party
possessed when he acted, increase a party’s liability for past
conduct, or impose new duties with respect to transactions already
completed. If the statute would operate retroactively, our traditional
presumption teaches that it does not govern absent clear
congressional intent favoring such a result.
Id. at 280 (emphasis added). Hence, under Landgraf, the new FCAs statutes should not be applied
unless there is clear legislative guidance that it is proper to do so.
However, both Bradley and Landgraf are federal cases where the United States Supreme
Court was discussing whether it was appropriate to apply federal statutes retroactively. Here, the
issue is whether specific State FCA statutes should be given retroactive effect when the state
legislatures were silent. The Court must consider how each State treats retroactivity questions, not
the applicability of Bradley and Landgraf. Therefore, the Court will address each State.
The New Jersey FCA “is not retroactively applicable to conduct occurring prior to its
effective date.” State ex rel. Hayling v. Corr. Med. Servs., Inc., 28 A.3d 1246, 1250 (N.J. Super.
Ct. App. Div. 2011). Accordingly, Zydus’s Motion relating to New Jersey is GRANTED and the
Court will dismiss with prejudice Relators’ claims under the New Jersey FCA (Count 23) which
occurred prior to its effective date, March 13, 2008. N.J. Stat. Ann. § 2A:32C–1.
Pursuant to the Connecticut Supreme Court, “The principles that govern retroactive
application of legislative enactments are well-established. Except as to amending statutes that are
procedural in their impact, there is a general presumption that legislation is intended to operate
prospectively.” Enfield Fed. Sav. & Loan Ass’n v. Bissell, 440 A.2d 220, 221 (Conn. 1981). The
Connecticut FCA is not a procedural statute, therefore the presumption is that it should be applied
prospectively. Accordingly, Zydus’s Motion relating to Connecticut is GRANTED and the Court
9
will dismiss with prejudice Relators’ claims under the Connecticut FCA (Count 5) which occurred
prior to its effective date, October 5, 2009. Conn. Gen. Stat. Ann. § 17b–301a, § 17b–301b. 3
Pursuant to the Georgia Supreme Court, “legislation which involves mere procedural or
evidentiary changes may operate retrospectively; however, legislation which affects substantive
rights may only operate prospectively.” Fowler Props., Inc. v. Dowland, 646 S.E.2d 197, 200 (Ga.
2007). The Georgia Constitution clarifies, “No bill of attainder, ex post facto law, retroactive law,
or laws impairing the obligation of contract or making irrevocable grant of special privileges or
immunities shall be passed.” Ga. Const. art. 1, § 1, ¶ X. Accordingly, Zydus’s Motion relating to
Georgia is GRANTED and the Court will dismiss with prejudice Relators’ claims under the
Georgia FCA (Count 10) which occurred prior to its effective date, May 24, 2007. Ga. Code Ann.
§ 49–4–168.1.
In Indiana, “absent an express indication otherwise, [courts applying Indiana law] presume
that the legislature intended that the statute be applied prospectively only.” Robinson v. Valladares,
738 N.E.2d 278, 281 (Ind. Ct. App. 2000). The Indiana legislature enacted the Indiana False Claims
and Whistleblower Protection statute on May 11, 2005, and the legislature noted it was effective
on July 1, 2005. 2005 Ind. Legis. Serv. P.L. 222-2005 (H.E.A. 1501). Accordingly, Zydus’s
Motion relating to Indiana is GRANTED and the Court will dismiss with prejudice Relators’
claims under the Indiana FCA (Count 13) which occurred prior to July 1, 2005.
Pursuant to the Minnesota Supreme Court “laws are presumed to have no retroactive effect
unless clearly and manifestly intended by the legislature. . . . No lesser standard should be applied
to rules promulgated under statutory authority.” Mason v. Farmers Ins. Cos., 281 N.W.2d 344,
3
The Court notes these provisions of the Connecticut FCA statute have been since repealed,
effective June 13, 2014. (Id.)
10
348 (Minn.1979). The Minnesota FCA was enacted in 2009 and became effective July 1, 2010.
Minn.Stat. Ann. § 15C.01. Accordingly, Zydus’s Motion relating to Minnesota is GRANTED and
the Court will dismiss with prejudice Relators’ claims under the Minnesota FCA (Count 19) which
occurred prior to July 1, 2010.
In Oklahoma, “[a]bsent a plain legislative intent to the contrary, statutes are generally
presumed to operate prospectively only.” Cole v. Silverado Foods, Inc., 78 P.3d 542, 546 (Okla.
2003.) The Oklahoma Medicaid FCA became effective November 1, 2007. 2007 Okla. Sess. Law
Serv. Ch. 137 (S.B. 889). Accordingly, Zydus’s Motion relating to Oklahoma is GRANTED and
the Court will dismiss with prejudice Relators’ claims under the Oklahoma Medical FCA (Count
27) which occurred prior to November 1, 2007.
Pursuant to the Rhode Island Supreme Court, “statutes and their amendments operate
prospectively unless there is clear, strong language or a necessary implication that the General
Assembly intended to give the statute retroactive effect.” Direct Action for Rights & Equal. v.
Gannon, 819 A.2d 651, 658 (R.I. 2003). If “a statute lacks such clear, strong language or there is
no necessary implication concerning its retroactive application, the distinction between a
substantive statute and a remedial, or procedural, statute becomes very important.” Id. Substantive
statutes, “which create, define, or regulate substantive legal rights, must be applied prospectively,
. . . remedial and procedural statutes, which do not impair or increase substantive rights but rather
prescribe methods for enforcing such rights, may be construed to operate retroactively.” Id.
(citation omitted). The Rhode Island FCA is similar substantively to other state FCAs and the
federal FCA, and therefore, cannot be deemed remedial or procedural because it creates civil
liability. U.S. ex rel. King v. Solvay S.A., 823 F. Supp. 2d 472, 530 (S.D. Tex. 2011), order vacated
in part on reconsideration, No. H-06-2662, 2012 WL 1067228 (S.D. Tex. Mar. 28, 2012). The
11
Rhode Island FCA became effective on July 1, 2007. R.I. Gen. Laws 1956, § 9–1.1. Accordingly,
Zydus’s Motion relating to Rhode Island is GRANTED and the Court will dismiss with prejudice
Relators’ claims under the Rhode Island FCA (Count 28) which occurred prior to July 1, 2007.
Finally, Zydus argues Relators lack standing to proceed with their State FCA claims on
two grounds: (1) Georgia, Hawaii, and Rhode Island did not file notices declining intervention at
the time the Court issued its April 26, 2017 Opinion; and (2) the notices declining intervention
filed do not comply with their State FCA requirements because they were filed more than five
years late. (ECF No. 156-1 at 11- 20.) Zydus “requests that the Court dismiss Relator’s State FCA
claims without prejudice and instruct relators to re-file their complaint and comply with all State
FCA requirements.” (Id. at 19.)
The Court acknowledges Georgia, Rhode Island, and Hawaii did not file notices declining
intervention at the time the Court issues its prior Opinion, however, all three states have now filed
declination notices on record rendering Zydus’s argument moot. (See ECF Nos. 159, 175, 160,
172, 178, and 179.) As articulated in the Court’s prior Opinion, each jurisdiction’s false claims act
requires either the jurisdiction or an official thereof to notify the Court of that jurisdiction’s
decision to decline intervention. 4 This procedure was not complied with prior to filing suit, as only
the United States notified the Court of its election to decline intervention. (ECF No. 10.) After the
Court’s April 26, 2017 Opinion, however, the Court received formal notice of declination from
Georgia, Rhode Island, and Hawaii. (See ECF Nos. 159, 160, and 178.) Although these late notices
do not strictly comply with the requirements of each jurisdiction’s false claims act, the United
4
The Georgia statute requires the state “Attorney General” to “[n]otify the court that it declines
to take over the civil action.” Ga. Code Ann. §49-4-168.2(c)(4)(B). The Hawaii statute requires
“the State” to “[n]otify the court that it declines to take over the action.” Haw. Rev. Stat. § 66125(d)(2). The Rhode Island statute requires the “state” to “[n]otify the court that it declines to
take over the action.” R.I. Gen. Laws Ann. § 9-1.1-4(b)(4)(ii).
12
States’ omnibus Notice of Election to Decline Intervention (ECF No. 10) did provide Zydus with
notice of all States intent to decline intervention. Further, in light of the States’ subsequent notices,
and in the interest of juridical economy, the Court will allow these claims to proceed. 5
Second, Zydus failed to argue in its motion to dismiss that notices declining intervention
must be filed within a specific time period. (See ECF No. 101.) Therefore, this argument cannot
serve as a basis for the Court’s reconsideration of its prior Opinion. Estate of Harrison v. Trump
Plaza Hotel & Casino, 2015 WL 3754996, at *2 (D.N.J. June 16, 2015) (“[N]ew arguments cannot
serve as a basis for the Court’s reconsideration of its prior Opinion and Order.”); BAPU Corp v.
Choice Hotels Int’l., 2010 WL 3259799, at *1 (D.N.J. Aug. 17, 2010) (refusing to “consider
Plaintiffs’ . . . argument because it was raised for the first time in this motion for reconsideration”).
In any event, the Court acknowledges these notices were not filed at the time of Zydus’s motion
to dismiss, and therefore gives Zydus the benefit of the doubt as to why it did not timely raise the
argument. However, even if the State FCA statutes require a State to decline intervention within a
specific period of time (see ECF No. 156-1 at 14-20), and the notices declining intervention did
not strictly comply with those requirements, the interests of judicial economy do not warrant the
Court ordering Relators to re-file their complaint simply so the States can re-submit their notices
in a timely fashion.
Lastly, to the extent Zydus is asking the Court to reconsider its decision to allow Relators’
State law cause of action to proceed regardless of their failure to comply with the requirements of
each jurisdiction’s false claims act because it overlooked the law, the Court did not overlook the
5
Georgia and Rhode Island’s FCA claims will only proceed to the extent those claims occurred
after the statutes effective date as discussed above.
13
States FCA requirements. Indeed, it acknowledged that the declination notices did not strictly
comply with the requirements of each jurisdiction’s false claims act. (ECF No. 153 at 30.)
Nevertheless, in the interests of juridical economy, it decided to allow the claims to proceed.
Therefore, Zydus merely disagrees with the Court’s reasoning and ultimate decision, and mere
disagreement is not a sufficient basis for reconsideration. ABS Brokerage Servs., 2010 WL
3257992, at *6. Accordingly, Zydus’s Motion as to standing is DENIED. 6
IV.
CONCLUSION
For the reasons set forth above, Zydus’s Motion for Reconsideration (ECF No. 156) is
GRANTED in part and DENIED in part. Zydus’s Motion for Reconsideration as to Relators’
presentment argument is DENIED. Zydus’s Motion for Reconsideration as to the Court’s prior
decision denying dismissal as to Connecticut, Georgia, Indiana, Minnesota, New Jersey,
Oklahoma, and Rhode Island’s FCA claims prior to their effective date is GRANTED to the extent
those claims occurred after the statutes effective date. Lastly, Zydus’s Motion for Reconsideration
as to the Court’s prior decision as to Relators’ lack of standing is DENIED. An appropriate order
will follow.
Date: January 23, 2018
/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
6
Notably, Connecticut, Georgia, Indiana, Minnesota, New Jersey, Oklahoma, and Rhode Island’s
FCA claims will only proceed to the extent those claims occurred after the statutes effective date
as discussed above.
14
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